Encouraging Developments in the Struggle to Reform America’s Informant System

Preliminary research indicates that up to 80 percent of all drug cases in America may be based on information provided by informants. Informants work for the government, often secretly, to gather and provide information or to testify in exchange for cash or leniency in punishment for their own crimes. In many courts across the nation, all it takes is the uncorroborated word of an informant to charge someone with a crime.

This week has featured a few encouraging developments for those of us advocating reforms in the ways law enforcement works with informants:

NPR’s Morning Edition ran a three-part series about problems with the FBI’s use of informants. The third story is about a bill that Rep. William Delahunt (D-Mass.) plans to introduce “that would essentially hold FBI agents criminally responsible if they fail to share criminal activity of a confidential informant with other law enforcement agencies.”

Last summer, in the wake of the Kathryn Johnston scandal, the House Judiciary Committee held a hearing on law enforcement’s use of drug informants. Perhaps the most revealing exchange of the hearing occurred when Assistant Director of the FBI Directorate of Intelligence Wayne M. Murphy refused to reassure Congress that the FBI does not tolerate "serious violent felonies" by their informants. Murphy also could not ensure that local authorities would be notified when informants commit serious crimes.

To get an idea just how unaccountable the FBI’s use of informants really is, consider this 2005 report by the Inspector General of the U.S. Department of Justice, finding that the FBI violated its own rules for handling informants in 87 percent of cases.

The FBI handles only a small fraction of all drug cases in the U.S. — the vast majority are handled by state and local agencies — so this is undoubtedly just the tip of the iceberg.

Delahunt’s bill is a good sign, although more broad reforms will be necessary to address the root causes that lead to police work being placed in the hands of unreliable informants in the first place.

Also this week, the Montana Supreme Court issued an excellent opinion in a case about the use of informants. The Court held that the Montana state constitution’s right to privacy prohibits the police from “wiring” informants and recording their conversations with suspects without a warrant. The Court said that a district judge should have suppressed evidence in two cases involving informants wired with secret microphones, one in a suspect’s home and another in an automobile.

Meanwhile, the U.S. Supreme Court is currently considering informant issues in two separate cases. Pearson v. Callahan presents the question of whether the Fourth Amendment is violated when police enter a home without a warrant after an informant inside signals to police that a crime, usually a drug deal, is taking place. Some lower courts have allowed this practice based on a legal fiction coined “consent once removed,” which holds that a person who unwittingly consents to an undercover police officer or informant entering is also deemed to have consented to other police officers coming in later to search or arrest. The ACLU submitted a friend-of-the-court brief in the Pearson case arguing that whatever the rationale for applying the “consent once removed” doctrine to undercover officers, it certainly should not be applied to informants who are not even police officers.

The second informant case pending before the Court is Van de Kamp v. Goldstein, in which Thomas Goldstein sued former Los Angeles County District Attorney John Van de Kamp for the role he played in Goldstein’s wrongful conviction and 24-year incarceration. Goldstein was convicted of murder based on the word of a jailhouse informant named Edward Fink who falsely testified that Goldstein had confessed the murder to him. Fink’s perjury was possible only because the Deputy District Attorney prosecuting the case had no way of knowing about Fink’s history of deception in other cases, nor about the sweet deal Fink obtained in his own burglary cases in exchange for lying about Goldstein. The lawsuit alleges this information was unknown at trial because Van de Kamp had deliberately refused to put into place any information management system that would have enabled Deputy District Attorneys to access this type of information about jailhouse informants in their cases. The ACLU’s friend-of-the-court brief in the case describes the pervasive undocumented, unregulated use of informants today and the serious threat they pose to the fairness and integrity of the criminal justice system.

By implementing basic safeguards and regulations that ensure ample oversight and corroboration of informant testimony, we can begin to rebuild the broken trust between police and the communities they aspire to serve and protect. To learn more about the ACLU's work to reform America's informant system, please visit www.aclu.org/unnecessaryevil.